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Beastie Boys' sampling in 'Paul's Boutique' again in spotlight

May 10, 2012 | 10:26
am

Talk about bad timing.

Last week, a day before Beastie Boys founder Adam "MCA" Yauch passed away after a long battle with cancer, TufAmerica, Inc., which administers the rights to the recordings of Washington, D.C. go-go band Trouble Funk's catalog, filed a lawsuit in federal court accusing the Beastie Boys of sampling without permission the group's 1982 funk classics, "Drop the Bomb" and "Say What."

It's not the first time suit has been filed against "Paul's Boutique," which contains hundreds of samples and was created at a time when copyright law regarding sampling was in its infancy. But given that it's been 23 years since the album was released, that the existence of the Trouble Funk pieces on those records has been known for years -- the sample is easy to spot, given the awesome cowbell -- and that the Internet is teeming with annotated "Paul's Boutique" sites that identify each sample, the suit was a surprise.

TufAmerica contends that the Beastie Boys, along with co-defendants Universal Music Publishing, Brooklyn Dust Music and Capitol Records, infringed on its copyrights on at least three occasions by sampling "Drop the Bomb" and "Say What" without permission. For example, on "Car Thief," from "Paul's Boutique," "Drop the Bomb" was incorporated into the song and, according to the suit, "effectively concealed to the casual listener." Ditto "Hold It, Now Hit It" and "The New Style" from the Beastie Boys' debut, "Licensed to Ill."

TufAmerica's president and founder is Aaron Fuchs, longtime New York hip-hop and post-disco record man and early rap chronicler whose Tuff City imprint and its sub-labels over the past three decades have released hip-hop, dance hall, New Orleans jazz, and funk tracks. In fact, according to Dan Charnas' book on the business of hip-hop, "The Big Payback," Tuff City was the first hip-hop label to sign a production deal with a major label, when, in 1983, it hooked up with CBS and released early sides by Spoonie Gee, Davy DMX and the Cold Crush Brothers.

Tuff City's publishing arm has been successfully enforcing its copyrights for years, and has made a business out of buying the rights to old songs and then filing suit against artists who have sampled them without permission. For example, one of its songs, a Mardi Gras banger called "It Ain't My Fault," got sampled by New Orleans rapper Silkk the Shocker -- and that track was then used on Mariah Carey's "Did I Do That," resulting in a six-figure payout. Another, the Honey Drippers' "Impeach the President," earned his company money from Sony Music after both LL Cool J and EPMD used the song.

And the music of Trouble Funk, the percussive Washington, D.C., funk band, has been sampled dozens of times over the years; according to the online database whosampled.com, these include Dr. Dre, George Michael, Will Smith and the Black Eyed Peas.

“We’ve been signed with Tuff City publishing company over 10 years and they’re pretty much going after people that have been using and abusing our stuff without our permission,” original Trouble Funk bassist Tony Fisher recently told the Washington Post.

The suit doesn't surprise Kembrew McLeod, associate professor of communication studies at the University of Iowa, and co-author, with economist and researcher Peter DiCola, of the book "Creative License: The Law and Culture of Digital Sampling." "'Paul’s Boutique' and other albums of that era are like ticking legal time bombs," says McLeod, who also co-produced the acclaimed documentary "Copyright Criminals." "For instance, in 2005, Run DMC was sued by the Knack for using 'My Sharona' for its song 'It’s Tricky.' And they were sued 20 years after the fact."

This reality is compounded by the fact that each time "Paul's Boutique" is issued in a new format, or repackaged, the statute of limitations on filing an infraction claim starts anew at year zero. "It's very confusing," McLeod says.

In "Creative License," he and DiCola specifically examined the samples in both "Paul's Boutique" and Public Enemy's "Fear of a Black Planet," two classics of hip-hop's sample era, and estimated the cost of legally producing, with all samples intact, those records today.

Says McLeod: "Based on the number of sales, both albums would have lost money per unit, and 'Paul’s Boutique' would have lost somewhere in the neighborhood of $20 million -- and we were being extremely conservative with our estimates."

He adds that there are two myths about the samples and licensing on the Beastie Boys' classic. One is that when the record was first released, neither the group nor its label, Capitol, had cleared any of the rights to the snippets of recordings that they and producers the Dust Brothers used. "They and their label were really cautious. They cleared tons of songs," McLeod says, citing the ballpark $250,000 figure that's often reported, and the fact that the Jimmy Castor Bunch had sued the group soon after "Licensed to Ill" was released.

The other myth is that the record is totally cleared. It's not.

Most copyright claims don't make the news, says McLeod, as the two sides usually negotiate a settlement, which no doubt has happened with much of the reworked music on "Paul's Boutique." He predicts that advances in technology will continue to provide work for copyright litigators in the years to come.

"It’s not uncommon in the discovery stage to have them turn over the Pro Tools files, so that even if the sample has been totally transformed -- there’s case law out there in the past five years that even one second of a song, even if it’s almost unrecognizable, it’s still a potential infringement."

Citing two landmark infringement suits from the early '90s, McLeod adds: "There’s audio fingerprinting technology out there that I’m sure publishing companies are feeding old hip-hop albums from between ’86 and ’91 into -- between the beginning of the sampling era and the De La Soul and Biz Markie cases."

Update: The original version of this post misspelled the name of author Kembrew McLeod. We have corrected it above.